Standing up to the bullies – injured migrant worker goes to court

09/07/2012

If you defend your rights by going to court, it can take years and the costs are enormous. The bosses can intimidate you, saying they have the money and the time: They know that we are just migrant workers and that we cannot afford [legal action]. Most of us just shut up and put up with it. But I got angry. This is a matter of principle. When I get bullied, I get angry.

Pang Shun is no push-over. In many ways he exemplifies the resolute determination of a growing number of young migrant workers who are no longer willing to accept the exploitation and discrimination their parents had to endure. After being injured at work, threatened and intimidated by his boss, Pang stood his ground and demanded the compensation he was legally entitled to. In September 2011, he talked to CLB Director Han Dongfang about his fight for justice.

After graduating with a degree in marketing from technical college at the age of 19, Pang Shun got a job in sales but he left soon after discovering that he had to pay for his own board and lodging while on the road.

Pang decided that he would be better off as a migrant worker than as an overworked and underpaid salesman and left his home town in the south-western province of Guangxi for the factory towns of the Pearl River Delta. He ended up at an old printing factory in the industrial township of Chang’an, adjacent to Shenzhen. He started work as a machinist in September 2010, pressing gift boxes, etc. into shape. Less than six months later, in April 2011, the machine he was operating crushed four of his fingers in his left hand. He suffered multiple fractures and dislocations in his index and middle fingers, injuries that required at least one month off work. Only his thumb was unhurt.

The factory paid for the cost of surgery and post-operative treatment but refused to pay the compensation required by law for the Grade Ten injury he sustained - usually about seven month’s salary. Not only did the management play hardball on the compensation, it also insisted that he come back to work before the end of the month-long recuperation prescribed by the hospital. Pang refused. Instead, he went to the Chang’an Labour Bureau and then to the Social Security Bureau to formally apply for certification of his work-related injury, a necessary step for obtaining compensation.

They told me to go back and get a stamp from the factory. But the management did not want to give me the stamp. Even after I got them to affix their seal to the application, they didn’t want to give me the paperwork. I got it in the end, because they knew I had taken a lot of legal advice.

Good boss, bad boss

Management offered around 4,000-5,000 yuan compensation but Pang refused the offer, believing he was legally entitled to more. He was also angry that the bosses were demanding that he return to work immediately, before the month of rest was up. “I still had metal rods in my hand, for crying out loud!” he said. The factory did not even offer him an alternative position and insisted that he return to his old job without delay.

There are two bosses. One, called Qian, is a decent guy, very polite, he manages the factory affairs, but he does not have anything to do with its finances. That’s the other guy, and he said ‘no’ to compensation. Qian told me not to make a fuss, and that things would be sorted out. He is the legal representative, and he said to me, ‘you don’t want to go to the labour authorities and create a fuss over this. We can find a way of settling this privately.’ I said again that I was amenable and asked him what he had in mind? But he did not specify anything. Things were just dragged out until I got angry. And I went to the Social Security Bureau and Labour Bureau. That is when they started docking my wages.

Pang’s basic wage of 1,100 yuan a month was cut back to around 800 yuan (substantially lower than the minimum wage in Chang’an at the time) because of the time he had taken off to recover from his injury. He also had his meal and utilities costs deducted. But Pang said:

It’s not really about the few thousand yuan. It’s that we have no redress. We rural migrants, we have to put up with all this cheating, bullying and being ridden roughshod over. They threatened me several times; they said, ‘if you want to make trouble, go ahead. If you want to go to court, we have money and time. You are just migrants from far away.’ It’s their attitude that pushed me over the edge.

Pang filed for labour arbitration on 4 August 2011. The specific issues included the docking of his pay and management’s attempts to get him back to work before his hand fully recovered, both of which Pang said were violations of the Labour Law.

Everybody said, ‘if you actually dare to go to court over this, if you try to sue them, it will take a long time, and if you do sue them, you will get fired.’ Many people said they could not afford to do something like that.

A low-paid, dangerous and dead-end job

But the day after filing the case, Pang quit his job. It was after all not a job worth fighting for. The Yingfeng printing factory was an antiquated facility that employed about 70 to 80 workers, mainly producing drill bits and screws for electric power installations. Pang worked on a set of five pressing machines used to make boxes. The machines all lacked protective covers and other attachments. Even after Pang’s injury, no protective covers or infrared emergency stopping systems were added to the equipment.

They could have introduced more advanced machines with an instant switch-operated shutdown system, but our machines were very old. Everything in our factory was old and decrepit.

What the management did do, however, was arrange work-related injury insurance for the machinists to ensure that the hospital bill would be picked up by the state if another accident occurred. This insurance was introduced only after Pang had his accident, and only covered workers on the dangerous machines, he said.

Another grievance was overtime and holiday arrangements. “Our basic working day was eight and half hours, but when a large batch of orders came in, it could be 11 hours or more, starting at 6.30. in the morning with four or five hours of overtime paid at a rate of plus 50 percent.” Moreover, this rate was also applied to work on Sundays and statutory holidays in violation of the Labour Law, which stipulates double-time and triple time respectively on these days.

One final complication for Pang to consider was his father, a six year veteran at the same factory. Pang was concerned that his legal action might impact on his father’s position at the factory, and in particular his bonus entitlements. His fears were well-founded. Just before Pang talked to Han Dongfang, his father submitted his resignation from the plant and was preparing to leave.

Han Dongfang's interview with Pang Shun was first broadcast in five episodes in September 2011. To read the full Chinese transcript or listen to the audio file of the broadcast please go to the workers’ voices section of our Chinese language website and follow the links.

This case highlights once again how legal redress is all too often out of reach for low-paid workers because, under the current system, both parties have to pay their own legal fees even if they win the case. If the dispute is over a few thousand yuan, it simply is not worth going to court. In an article published in January this year, New York University Law School graduate Jason Law argues that a more pro-worker system is needed, one in which legal fees are shifted on to the employer when the worker plaintiff is successful.

Story Highlight

It is the duty of the union to represent workers in negotiations with employers, it should not just sit on its hands. Neither should the Trade Union Law just exist on paper. The union should shoulder its legal responsibilities towards workers by defending their rights.

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